Liberals and the Constitution

Liberals typically erupt in outrage if you suggest they don’t respect or understand the Constitution, let alone defend it. But then they let slip that in fact they really don’t respect or understand the Constitution, and would replace it in a heartbeat if they thought they could get away with it. Think of Ezra Klein remarking a couple years back on how the Constitution is too hard to understand because, like, it’s over a hundred years old man!* And this week Barack Obama proved himself once again the perfect epigone of Woodrow Wilson—the first president to criticize the Constitution and the principles of the American Founding—with his remarks to NBC’s Matt Lauer that one reason he hasn’t succeeded in fulfilling his campaign promises to transform the world is that “it turns out our Founders designed a system that makes it more difficult to bring about change than I would like sometimes.” It turns out? He’s just discovering this now? (Well, one thing that “turns out” is that the only constitutional law Obama actually taught at the University of Chicago was the equal protection clause. Apparently he skipped over that whole “separation of powers” stuff.)

But the prize for this week’s liberal obtuseness about the Constitution goes to Supreme Court Justice Ruth Bader Ginsburg, who told an Egyptian television audience that “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” Instead, “I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary.” She added that “you should certainly be aided by all the constitution-writing that has gone one since the end of World War II.”

There is no doubt Egypt needs a new and better constitution. The current Egyptian constitution proclaims Islam to be the official religion, and Sharia law “the principal source of legislation.” The previous constitution directly declared socialism to be the economic system of the nation; the current version merely declares “social justice” to be part of the basis of the national economy, which I suppose is accurate for a nation where the vast majority are equally poor. Perfect social justice!

But beyond the Egyptian context, most post-World War II constitutions that Ginsburg thinks are the bee’s knees are gravely defective. Most are much longer than our Constitution. (The draft EU constitution is the size of a phone directory.) Most install parliamentary governments with proportional representation, assuring the proliferation of parties and factions and increasing political instability. They all tend to confuse fundamental natural rights such as freedom of speech and religion with positive rights such as a right to housing and a right to health care. (The Serbian constitution is especially comical; it declares a right to a job and a right to health care, but then says these rights are subject to budgetary constraints. But if your rights depend on the government’s budget, it’s not much of a “right.”) There’s a simple reason liberals love these other constitutions: they are charters for a massive welfare state.

The South African constitution is equally watery. Yes, it does include an independent judiciary and a long list of positive rights. Then there’s this:

When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; must consider international law; and may consider foreign law.

No wonder Ginsburg likes it so much: it more or less gives judges a blank check to look anywhere they want to reach any result they want.

“The Constitution has seen better days. Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.”

“The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.

Read the whole thing. It gets worse. The U.S. Constitution is losing appeal because our liberal elites no longer believe in its principles. Is there any doubt that if liberals had their way, they’d junk the U.S. Constitution and install one that enshrines liberal ideology? (I’m only getting warmed up here. I used to teach a course on comparative constitutionalism as a visiting professor at Georgetown, and I usually took several weeks walking through various constitutions around the world—Lebanon’s is especially interesting—and explaining the theoretical and historical basis of why all the modern constitutions beloved of liberals and Eurocrats are defective.)

Fortunately, Justice Scalia shows up in the NY Times article:

“Every banana republic in the world has a bill of rights,” he said. “The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,” he said, adding: “We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!”

“Of course,” Justice Scalia continued, “it’s just words on paper, what our framers would have called a ‘parchment guarantee.’ ”